Reason given in the later cases. the servant than he may reasonably be expected to do of himself;" that a servant has better opportunities than his master of watching and controlling the conduct of his fellow-servants; and that a contrary doctrine would lead to intolerable inconvenience, and encourage servants to be negligent. According to this there would be a sort of presumption that the servant suffered to some extent by want of diligence on his own part. But it is needless to pursue this reasoning; for the like result was a few years. afterwards arrived at by Chief Justice Shaw of Massachusetts by another way, and in a judgment which is the fountain-head of all the later decisions (e). The accepted doctrine is to this effect. Strangers can hold the master liable for the negligence of a servant about his business But in the case where the person injured is himself a servant in the same business he is not in the same position as a stranger. He has of his free will entered into the business and made it his own. He cannot say to the master, You shall so conduct your business as not to injure me by want of due care and caution therein. For he has agreed with the master to serve in that business, and his claims on the master depend on the contract of service. Why should it be an implied term of that contract, not being an express one, that the master shall indemnify him against the negligence of a fellow-servant, or any other current risk? It is rather to be implied that he contracted with the risk before his eyes, and that the dangers of the service taken all round, were considered in fixing the rate of payment. This is, I believe, a fair summary of the reasoning which has prevailed in the authorities. With its soundness we are not here concerned. It was not only adopted by the House of Lords for England, but forced by (e) Farwel' v. Boston and Worcester Railroad Corporation, 4 Met. 49. them upon the reluctant Courts of Scotland to make the jurisprudence of the two countries uniform (f). No such doctrine appears to exist in the law of any other country in Europe. The following is a clear judicial statement of it in its settled form: "A servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellowservant when he is acting in the discharge of his duty as servant of him who is the common master of both" (g). vants need not be about the same kind The phrase "common employment" is frequent in this The serclass of cases. But it is misleading in that it suggests a limitation of the rule to circumstances where the injured servant had in fact some opportunity of observing and of work: guarding against the conduct of the negligent one; a limitation rejected by the Massachusetts Court in Farwell's case, where an engine-driver was injured by the negligence of a switchman (pointsman, as we say on English railways) in the same company's service, and afterwards constantly rejected by the English Courts. "When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near (f) See Wilson v. Merry (1868) L. R. 1 Sc. & D. 326. (g) Erle C. J. in Tunney v. Midland R. Co. (1866) L. R. 1 C. P. ut p. 296; Archibald J. used very provided there is a general common object. or how distant must they be to be in the same or different departments. In a blacksmith's shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight or voice, and yet acting together. "Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connexion with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied" (h). So it has been said that "we must not over-refine, but look at the common object, and not at the common immediate object" (i). All persons engaged under the same (h) Shaw C. J., Farwell v. Boston, &c. Corporation, 4 Met. 49. M. Sainctelette of Brussels, and M. Sauzet of Lyons, whom he quotes (op. cit. p. 140), differ from the current view among French-speaking lawyers, and agree with Shaw C. J. and our Courts, in referring the whole matter to the contract between the master and servant; but they arrive at the widely dif ferent result of holding the master bound, as an implied term of the contract, to insure the servant against all accidents in the course of the service, and not due to the servant's own fault or vis major. (i) Pollock C. B., Morgan v. Vale of Neath R. Co. (1865) Ex. Ch. L. R. 1 Q. B. 149, 155, 35 L. J. Q. B. 23. employer for the purposes of the same business, however different in detail those purposes may be, are fellow-servants in a common employment within the meaning of this rule: for example, a carpenter doing work on the roof of an engine-shed and porters moving an engine on a turntable (j). "Where there is one common general object, in attaining which a servant is exposed to risk, he is not entitled to sue the master if he is injured by the negligence of another servant whilst engaged in furthering the same object" (k). rank of the rial. It makes no difference if the servant by whose negli- Relative gence another is injured is a foreman, manager, or other servants superior in the same employment, whose orders the other immatewas by the terms of his service bound to obey. The foreman or manager is only a servant having greater authority: foreman and workmen, of whatever rank, and however authority and duty may be distributed among them, are "all links in the same chain" (1). The master is bound, as between himself and his servants, to exercise due care in selecting proper and competent persons for the work (whether as fellow-workmen in the ordinary sense, or as superintendents or foremen), and to furnish suitable means and resources to accomplish the work (m), and he is not answerable further (n). (j) See last note. (k) Thesiger L. J., Charles v. Taylor (1878) 3 C. P. Div. 492, 498. (1) Feltham v. England (1866) L. R. 2 Q. B. 33, 36 L. J. Q. B. 14; Wilson v. Merry (1868) L. R. 1 Sc. & D. 326: see per Lord Cairns at p. 333, and per Lord Colonsay at p. 345. The French word collaborateur, which does not mean "fellow-workman" at all, was at one time absurdly introduced into these cases, it is believed by Lord (m) According to some decisions, (n) See next page. Servants of subcontractor. Volunteer assistant is on same footing as servant. It has further been held that the servants of subcontractors for portions of a general undertaking were for this purpose fellow-servants with the servants directly employed by the principal contractors; and this although there was no evidence that the sub-contractors' work was under the direction or control of the chief contractors, beyond the fact of its being carried on at the same time and in the same building (0). Moreover, a stranger who gives his help without reward to a man's servants engaged in any work is held to put himself, as regards the master's liability towards him, in the same position as if he were a servant. Having of his free will (though not under a contract of service) exposed himself to the ordinary risks of the work and made himself a partaker in them, he is not entitled to be indemnified against them by the master any more than if he were in his regular employment (p). quite lately it has been decided in (n) Lord Cairns, as above: to by himself or his workmen in a fit and proper manner." In Skipp v. E. C. R. Co. (1853) 9 Ex. 223, 23 L. J. Ex. 23, it was said that this duty does not extend to having a sufficient number of servants for the work: sed qu. The decision was partly on the ground that the plaintiff was in fact well acquainted with the risk and had never made any complaint. (0) Johnson v. Lindsay (1889) 23 Q. B. Div. 508, 58 L. J. Q. B. 581 (diss. Fry L. J.), following and perhaps extending Wiggett v. Fox, 11 Ex. 832, 25 L. J. Ex. 188. (p) Potter v. Faulkner (1861) Ex. Ch. 1 B. & S. 800, 31 L. J. Q. B. 30, approving Degg v. Midland R. Co. (1857) 1 H. & N. 773, 26 L. J. Ex. 174. |